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Exhibit 10.10
AGREEMENT
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THIS AGREEMENT ("Agreement"), dated as of ___________________, 1999, is
entered into between Horizon Bank, N.A. ("Bank"), a national banking association
organized under the laws of the United States of America, and _____________
(hereinafter referred to as "Employee"), an Indiana resident.
WITNESSETH:
WHEREAS, Bank is a subsidiary of Horizon Bancorp ("Holding Company"), a
corporation formed under the laws of the State of Indiana;
WHEREAS, Employee is employed by the Bank to serve as its ____________;
WHEREAS, because of Employee's experience and familiarity with general
banking affairs, the Bank wishes to assure that, in the event of a change of
control of the Holding Company, the Bank will continue to have Employee
available to perform duties substantially similar to those currently being
performed by Employee and to continue to contribute to the Bank's growth and
success; and
WHEREAS, Employee is willing to commit to continue in the performance
of such services for the Bank upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT.
(A) The Bank hereby agrees that, effective upon a Change of Control of
the Holding Company and provided that Employee is still serving as
______________ of the Bank at that time, the Bank will continue to employ
Employee as _________________ to perform the duties described herein, and
Employee hereby accepts such employment on the terms and conditions stated
herein. It is understood that, prior to such Change of Control, this Agreement
shall confer no rights of employment or other benefits (or obligations)
whatsoever upon Employee, and that Employee shall remain subject to termination
at will.
(B) For purposes of this Agreement, "Change of Control" shall mean a
Change of Control of the Holding Company of a nature which would be required to
be reported in response to Item 5(f) of Schedule 14A promulgated under the
Securities Exchange Act of 1934, as amended, or any merger, tender offer,
consolidation or sale of substantially all of the assets of Holding Company, or
related series of such events, as a result of which: (i) the majority
shareholders of Holding Company immediately prior to such event hold less than
fifty-percent (50%) of the outstanding voting securities of Holding Company or
its survivor or successor immediately after such event; or (ii) persons holding
less than twenty-percent (20%) of such securities before such event own more
than fifty-percent (50%) of such securities after such
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event; or (iii) persons constituting a majority of the Board of Directors of the
Holding Company (the "Holding Company Board") were not directors of the Holding
Company for at least twenty-four (24) months preceding the event.
2. TERM OF EMPLOYMENT. Subject to the provisions for termination set
forth herein, the term of Employee's employment hereunder shall commence on the
date a Change of Control occurs and shall extend until two (2) years after the
date of such Change of Control (such term, including any extension thereof shall
herein be referred to as the "Term"). Notwithstanding the foregoing, this
Agreement shall automatically terminate (and the Term shall thereupon end)
without notice when Employee attains sixty-five (65) years of age.
3. DUTIES OF EMPLOYEE. During the Term, Employee shall be the Executive
Vice President of the Bank and shall perform such duties and responsibilities
for the Bank as may be assigned by the Bank and which are not unreasonably
inconsistent with the duties currently being performed by Employee; provided,
however, that such duties shall be performed in or from the principal executive
offices of Bank, currently located in Michigan City, Indiana. Employee shall not
be required to be absent from the location of the principal executive offices of
Bank on travel status or otherwise more than thirty (30) days in any calendar
year. Bank shall not, without the written consent of Employee, relocate or
transfer Employee to a location more than thirty (30) miles from his principal
residence. During the Term, Employee shall devote substantially all business
time, attention and energy, and reasonable best efforts, to the interests and
business of the Bank and to the performance of the Employee's duties and
responsibilities on behalf of the Bank. Employee may use his discretion in
fixing the hours and schedule of work consistent with the proper discharge of
the Employee's duties. Employee, subject to the direction and control of the
Bank's Board of Directors ("Bank Board") and Chief Executive Officer, shall have
all power and authority commensurate with the Employee's status and necessary to
perform the Employee's duties hereunder. So long as Employee is employed by Bank
pursuant to this Agreement, Employee shall be entitled to office space and
working conditions consistent with the position as __________________. The Bank
shall provide Employee with such assistance and working accommodations as are
suitable to the character of the position with the Bank and as are adequate for
the performance of the Employee's duties.
4. COMPENSATION. Employee's basic annual salary as
_____________________ ("Base Salary") shall be the Employee's basic annual
salary at the time of the Change of Control. Such Base Salary shall be payable
in accordance with the Bank's standard payroll practices. The rate of Employee's
Base Salary shall be reviewed by the Bank Board not less often than annually and
may be increased, but not decreased, from time to time in such amounts as the
Board in its discretion may determine. Any and all increases in Employee's
salary pursuant to this Section shall cause the level of Base Salary to be
increased by the amount of each such increase for purposes of this Agreement.
The increased level of Base Salary as provided in this Section shall become the
level of Base Salary for the remainder of the Term until there is a further
increase in Base Salary as provided herein. Such salary payments shall be
subject to the withholding of applicable income and employment taxes and other
appropriate and customary amounts.
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5. VACATION. During the Term, Employee shall be entitled to the number
of weeks per calendar year of paid vacation in effect for the Employee upon the
Change in Control as increased in accordance with the Bank's vacation policy
then in effect or as changed from time to time, but provided that such vacation
may not be decreased below that amount in effect on the date of the Change in
Control. Such vacation shall be utilized at such times when the Employee's
absence will not materially impair Bank's normal business functions. Employee
shall not be entitled to any additional compensation for any unused and lapsed
vacation time. In addition to the vacation described above, Employee also shall
be entitled to all paid holidays customarily given by Bank to its officers.
6. OTHER BENEFITS. The following shall apply with respect to Employee's
coverage by and participation under employee benefit plans and programs
sponsored or otherwise made available by the Bank.
(A) During the Term, Employee shall be entitled to participate in or
receive benefits under (i) any life, health, hospitalization, medical, dental,
disability or other insurance policy or plan, (ii) pension, retirement or
employee stock ownership plan, (iii) bonus or profit-sharing plan or program,
(iv) deferred compensation plan or arrangement, and (v) any other employee
benefit plan, program or arrangement, made available by Bank on the date of this
Agreement and from time to time in the future to Bank's directors, officers and
employees on a basis consistent with the terms, conditions and overall
administration of the foregoing plans, programs or arrangements and with respect
to which Employee is otherwise eligible to participate or receive benefits.
(B) During the Term, Employee shall be entitled to receive such other
benefits or participate in such other activities as the Employee participated in
or was entitled to receive on the date of the Change in Control, including but
not limited to bonus or incentive plans, use of company cars, or payment of
membership fees to clubs and organizations, but this provision does not grant
the Employee any greater benefits than the Employee had in effect on the date of
the Change in Control.
7. EXPENSES. The Bank shall pay or reimburse Employee for all
reasonable expenses actually incurred or paid by the Employee in the performance
of services rendered by the Employee pursuant to this Agreement. Such expenses
shall be supported by the documentary evidence required to substantiate them as
income tax deductions for the Bank. Employee shall attend, at the Employee's
discretion, those professional meetings, conventions and/or similar functions
that Employee and Bank mutually deem appropriate and useful for the purposes of
keeping abreast of current developments in the industry and/or promoting the
interests of Bank.
8. TERMINATION. Subject to the respective continuing obligations of the
parties, including but not limited to those set forth in Section 10 below,
Employee's employment by Bank may be terminated prior to the expiration of the
Term as follows:
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(A) Bank Board or Chief Executive Officer, upon written notice to
Employee, may terminate Employee's employment with Bank immediately for cause.
For purposes of this subsection 8(A), "cause" shall be defined as (i) personal
dishonesty, (ii) incompetence, (iii) willful misconduct, (iv) willful violation
of any law, rule, or regulation (other than traffic violations or smaller
offenses) or final cease-and-desist order, or (v) any material breach of any
term, condition or covenant of this Agreement.
(B) Bank Board or Chief Executive Officer may terminate Employee's
employment with Bank without cause at any time; provided, however, that the
"date of termination" for purpose of determining benefits payable to Employee
under Section 6 hereof shall be the date which is thirty (30) days after
Employee receives written notice of such termination.
(C) Employee, by written notice to Bank, may terminate his employment
with Bank immediately for cause. For purposes of this subsection 8(C), "cause"
shall be defined as: (i) any action by Bank Board or the Chief Executive Officer
to remove the Employee as Executive Vice President of Bank, except where Bank
Board or the Chief Executive Officer properly acts to remove Employee from such
office for "cause" as defined in subsection 8(A) hereof; (ii) any action by Bank
Board or the Chief Executive Officer to materially eliminate, limit, increase,
or modify Employee's duties and/or authority as ________________ of Bank
(including authority, subject to corporate controls no more restrictive than
those in effect on the date hereof, to hire and discharge employees who are not
bona fide officers of Employer); (iii) any failure of Bank or Holding Company to
obtain the assumption of the obligation to perform this Agreement by any
successor as contemplated in Section 19 hereof; or (iv) any intentional breach
by Bank of a term, condition or covenant of this Agreement.
(D) Employee, upon sixty (60) days written notice to Bank, may
terminate his employment with Bank without cause.
(E) Employee's employment with Bank shall terminate in the event of
Employee's death or disability. For purposes hereof, "disability" shall be
defined as Employee's inability by reason of illness or other physical or mental
incapacity to perform the duties required by the Employee's employment for any
consecutive one hundred eighty (180) day period. Notice of any termination by
Bank because of Employee's "disability" shall be given to Employee prior to the
full resumption by him of the performance of such duties.
9. COMPENSATION UPON TERMINATION. In the event of termination of
Employee's employment with Bank pursuant to Section 8 hereof, compensation shall
continue to be paid by Bank to Employee as follows:
(A) In the event of termination pursuant to subsection 8(A), 8(B), 8(C)
or 8(D), compensation provided for herein (including Base Salary) shall continue
to be paid, and Employee shall continue to participate in the employment
benefit, retirement, and compensation plans and other perquisites as provided in
Section 6 hereof, through the date of termination specified in the notice of
termination. Any benefits payable under insurance, health, retirement and bonus
plans as a result of Employer's participation in such plans through such date
shall be paid when due under those plans. The date of termination specified in
any notice of termination
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pursuant to subsection 8(A) shall be no later than the last business day of the
month in which said notice is provided to Employee.
(B) In the event of termination pursuant to subsection 8(E),
compensation provided for herein (including Base Salary) shall continue to be
paid, and Employee shall continue to participate in the employment benefit,
retirement, and compensation plans and other perquisites as provided in Section
6 hereof, (i) in the event of Employee's death, through the date of death, or
(ii) in the event of Employee's disability, through the date of proper notice of
disability as required by subsection 8 (E). Any benefits payable under
insurance, health, retirement and bonus plans as a result of Bank's
participation in such plans through such date shall be paid when due under those
plans.
10. NONSOLICITATION COVENANTS OF EMPLOYEE. In order to induce Bank to
enter into this Agreement, Employee hereby agrees as follows:
(A) During the Term and for a period of two (2) years after termination
of such employment for any reason Employee shall not divulge or furnish any
trade secrets (as defined in IND. CODE Section 24-2-3-2) of Bank or any
confidential information acquired by him while employed by Bank concerning the
policies, plans, procedures or customers of Bank to any person, firm or
corporation, other than Bank or upon its written request, or use any such trade
secret or confidential information directly or indirectly for Employee's own
benefit or for the benefit of any person, firm or corporation other than Bank,
since such trade secrets and confidential information are confidential and shall
at all times remain the property of Bank.
(B) During the Term and for a period of two (2) years after termination
of Employee's employment by Bank for reasons other than those set forth in
subsections 8(B) or 8(C) of this Agreement, Employee shall not directly or
indirectly provide banking or bank-related services to or solicit the banking or
bank-related business of any person, firm, company or other business entity that
is doing business with the Bank, or assist any actual or potential competitor of
Bank to provide banking or bank-related services to or solicit banking or
bank-related business from any such person, firm, company, or business entity,
in any such place.
(C) If Employee's employment by Bank is terminated for any reasons,
Employee will turn over immediately thereafter to Bank all business
correspondence, letters, papers, reports, customers' lists, financial
statements, credit reports or other confidential information or documents of
bank or its affiliates in the possession or control of Employee, all of which
writings are and will continue to be the sole and exclusive property of Bank or
its affiliates.
(D) If Employee is terminated by Bank during the Term for reasons set
forth in subsection 8(B) of this Agreement, Employee shall have no obligations
to Bank with respect to nonsolicitation under Section 10(B), but shall continue
with respect to confidential information, trade secrets and return of property
under Section 10(A) and 10(C).
11. NOTICE OF TERMINATION. Any termination of Employee's employment
with Bank as contemplated by Section 8 hereof, except in the circumstances of
Employee's death, shall be communicated by written "Notice of Termination" by
the terminating party to the other party
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hereto. Any Notice of Termination pursuant to subsections 8(A), 8(C), or
8(E) shall indicate the specific provisions of this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination.
12. EMPLOYEE DISCIPLINE.
(A) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of Bank's or any affiliates' affairs by a notice
from the Comptroller of the Currency or other applicable regulatory body having
jurisdiction, Bank's obligations under this Agreement shall be suspended as of
the date of service of such notice, unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, Bank shall (i) pay Employee all or part
of the compensation withheld while its obligations under this Agreement were
suspended and (ii) reinstate (in whole or in part) any of its obligations which
were suspended.
(B) If Employee is removed and/or permanently prohibited from
participating in the conduct of Bank's or any affiliates' affairs by an order
issued from the Comptroller of the Currency or other applicable regulatory body
having jurisdiction, all obligations of Bank under this Agreement shall
terminate as of the effective date of the Order, although the vested rights of
the parties to the Agreement shall not be affected.
13. TAX PAYMENTS. Anything in this Agreement to the contrary
notwithstanding, in the event Bank's independent public accountants determine
that any payment by Bank to or for the benefit of Employee, whether paid or
payable pursuant to the terms of this Agreement, would be non-deductible by
Employer for federal income tax purposes because of Section 280G of the Internal
Revenue Code, the amount payable to or for the benefit of Employee pursuant to
the Agreement shall be reduced (but not below zero) to the Reduced Amount. For
purposes of this Section 13, the "Reduced Amount" shall be the amount which
maximizes the amount payable without causing the payment to be non-deductible by
Bank because of Section 280G of the Internal Revenue Code.
14. SUCCESSORS AND ASSIGNS. This Agreement is binding upon and shall be
for the benefit of the successors and assigns of the Bank, including any
corporation or any other form of business organization with which the Bank may
merge or consolidate, or to which it may transfer substantially all of its
assets. This Agreement may not be assigned by the Bank without the prior written
consent of Employee, which consent shall not be unreasonably withheld. The
Agreement will also be binding upon, enforceable against, and inure to the
benefit of the Employee and the Employee's heirs and representatives, and
nothing herein is intended to confer any right, remedy or benefit upon any other
person. Employee shall not assign his interest in this Agreement or any part
thereof.
15. CONSENT OF THE BANK. Any act, request, approval, consent or opinion
of the Bank under this Agreement, must be in writing and may be authorized,
given or expressed only by resolution of the Bank Board, or by such other person
as the Bank Board may designate.
16. NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been given when delivered or
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mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
(A) If to Employee:
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(B) If to Bank: Horizon Bank, N. A.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxx 00000
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana applicable to contracts made
and to be performed therein.
18. ENFORCEMENT EXPENSES. If a dispute arises regarding the termination
of Employee pursuant to Section 8 above or as to the interpretation or
enforcement of this Agreement and Employee obtains a final judgment in the
Employee's favor in a court of competent jurisdiction or the Employee's claim is
settled by Bank prior to the rendering of a judgment by such a court, all
reasonable legal fees and expenses incurred by Employee in contesting or
disputing any such termination or seeking to obtain or enforce any right or
benefit provided for in this Agreement or otherwise pursuing his claims shall be
paid by Bank (except as otherwise decided in any settlement between the parties)
to the extent permitted by law.
19. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to its subject matter, merges
and supersedes all prior and contemporaneous understandings with respect to its
subject matter, and may not be waived or modified, in whole or in part, except
by a writing signed by each of the parties hereto. No waiver of any provision of
this Agreement in any instance shall be deemed to be a waiver of the same or any
other provision in any other instance.
20. CONSTRUCTION. Headings contained in this Agreement are for
convenience of reference only and shall not be used in the interpretation of
this Agreement. References herein to Sections are to the sections of this
Agreement.
21. SUCCESSOR TO BANK. The Bank shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Bank, by agreement in
form and substance satisfactory to Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the Bank
would be required to perform it if no such succession had taken place. Failure
of the Bank to obtain such agreement prior to the effectiveness of any such
succession shall be a material intentional breach of this Agreement and shall
entitle Employee to terminate employment with Bank pursuant to subsection 8(C)
hereof. As used in this
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Agreement, "Bank" shall mean the Bank as herein before defined and any successor
to its business and/or assets.
22. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited or such payment reduced, but only to the extent necessary to render such
provision and this Agreement enforceable.
23. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Bank: Horizon Bank, N. A.
By:
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PRINTED:
Title:
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Employee
By:
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Printed:
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Address
IM-262314-1
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ADDENDUM TO AGREEMENT
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Horizon Bank, N.A. ("Bank") and ______________ (the "Employee") being
parties to that certain Agreement dated ________, 1999 (the "Agreement") with
respect the Employee's rights and responsibilities upon a "Change in Control"
(as defined in the Agreement) of the Bank or its parent corporation, Horizon
Bancorp ("Holding Company"), hereby agree to enter into this Addendum as
follows:
1. COMPENSATION UPON CHANGE IN CONTROL. Notwithstanding any provision
in the Agreement to the contrary, at the time of a Change in
Control, the Employee shall have the option to resign from his
position and receive a severance payment equal to two (2) times the
Employee's Base Salary in effect at the time of the resignation. In
the event that the Employee does not resign, but the Employee is
then terminated or forced to resign as a result of a Change in
Control, whether immediately or, at any time during the term of the
Agreement pursuant to Section 8(B) or 8(C) of the Agreement, the
Employee shall receive a severance payment equal to two (2) times
the Employee's Base Salary in effect at the time the termination
occurs.
2. AMENDMENT. In the event of any conflict between the terms of this
Addendum and this Agreement, the terms of this Addendum shall
control and the Agreement shall be deemed to be amended to the
extent necessary to effectuate the purposes of the Addendum. In all
other respects, the Agreement shall be and remain in full force and
effect pursuant to the terms thereof.
3. DEFINITIONS. All defined terms used but not otherwise defined herein
shall have the meanings ascribed to herein the Agreement.
In witness whereof, the Bank and the Employee have executed this
Addendum as of this ________ day of _______________________, 2000.
By
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Title
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EMPLOYEE
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Printed:
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address
